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Midland threatening to sue on Gibson mcdonald (furniture) Here is arb clause


kcdawg 304
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Have sucessfully used arb myself several times on credit cards but this is little different. Not my account but i'm helping someone out. Debt is in Ga and only couple years old. The debt is verified so next step is being sued. As of now they are not offering any kind of settlement. Debt if for 1900.00. I going to post entire arb clause here asking for expertise on whether this arbitration clause is worth proceeding with  not really. Thanks.

 

JURY TRIAL WAIVER AND ARBITRATION CLAUSE. By signing, you agree to this Jury Trial Waiver and Arbitration Clause (“Clause”). Background and Scope What is arbitration? An alternative to court. In arbitration, a third party ("Arbiter") solves Disputes in a hearing ("hearing"). You, related third parties, and we, waive the right to go to court. Such "parties" forgo jury trials. Is it different from court and jury trials? Yes. The hearing is private and less formal than court. Arbiters may limit pre-hearing fact finding, called "discovery." The decision is final. Courts rarely overturn Arbiters. Who does the Clause cover? You, Us, and Others. This Clause governs the parties, their heirs, successors, assigns, and third parties related to any Dispute. Which Disputes are covered? All Disputes. In this Clause, the word "Disputes" has the broadest possible meaning. This Clause governs all "Disputes" involving the parties. This includes all claims even indirectly related to your application and agreements with us. This includes claims related to information you previously gave us. It includes all past agreements. It includes, as may be applicable, any additional periods, extensions, renewals, and plans. It includes claims related to damaged property, buyout, reinstatement, loss, damage, warranty, maintenance, collection, possession, privacy, and customer information. It includes claims related to setting aside this Clause. It includes claims about the Clause's validity and scope. It includes claims about whether to arbitrate. Are you waiving rights? Yes. You waive your rights to: 1. Have juries solve Disputes. 2. Have courts, other than small-claims courts, solve Disputes. 3. Serve as a private attorney general or in a representative capacity. 4. Be in a class action. Are you waiving class action rights? Yes. COURTS AND ARBITERS WON'T ALLOW CLASS ACTIONS. You waive your rights to be in a class action, as a representative and a member. Only individual arbitration, or small-claims courts, will solve Disputes. You waive your right to have representative claims. Unless reversed on appeal, if a court invalidates this waiver, then the agreement to arbitrate will be void, and Disputes will be resolved by a judge, but not a jury. What law applies? The Federal Arbitration Act ("FAA"). This transaction involves interstate commerce. Thus, the FAA governs. If a court finds the FAA doesn't apply, and the finding can't be appealed, then the state law where you were when you signed, governs. The Arbiter must apply substantive law consistent with the FAA. The Arbiter must follow statutes of limitation and privilege claims. Can the parties try to solve Disputes first? Yes. We can try to solve Disputes if you call us at (877) 557-3769. If this doesn't solve the Dispute, mail us written notice, within 100 days of the Dispute date. In your notice, tell us the details and how you want to solve it. We will try to solve the Dispute. If we make a written offer ("Settlement Offer"), you can reject it and arbitrate. If we don't solve the Dispute, either party may start arbitration. To start arbitration, contact an Arbiter or arbitration group listed. No party will disclose settlement proposals to the Arbiter during arbitration. How should you contact us? By mail. Send mail to: Snap RTO LLC Attention: Arbitration. P.O. Box 26561, Salt Lake City, UT 84126. You can call us or use certified mail to confirm receipt. Can small-claims court solve some Disputes? Yes. Each party has the right to arbitrate, or to go to small-claims court if the small-claims court has the power to hear the Dispute. Arbitration will solve all Disputes that the small-claims court does not have the power to hear. If there is an appeal from small-claims court, or if a Dispute changes so that the small-claims court loses the power to hear it, then the Dispute will only be heard by an Arbiter. Do other options exist? Yes. Both parties may use lawful self-help remedies. This includes set-off or repossession and sale of the Property. Both parties may seek remedies which don't claim money damages. This includes prejudgment seizure, injunctions, or equitable relief. Will this Clause continue to govern? Yes, unless otherwise agreed. The Clause stays effective, unless the parties sign an agreement stating it doesn't. The Clause governs if you rescind the transaction. It governs if you default, renew, prepay, or pay. It governs if you terminate, if you reinstate, and if you return the Property. It governs if your Agreement is impacted by bankruptcy. The Clause remains effective, despite a transaction's termination, amendment, expiration, or performance. Process How does arbitration start? Mailing a notice. Either party may mail the other a request to arbitrate, even if a lawsuit has been filed. The notice should describe the Dispute and relief sought. The receiving party must mail a response within 20 days. If you mail the demand, you may choose the arbitration group. Or, your demand may state that you want the parties to choose a local Arbiter. If related third parties or we mail the demand, you must respond in 20 days. Your response must choose an arbitration group or propose a local Arbiter. If it doesn't, we may choose the group. Who arbitrates? AAA, JAMS, or an agreed Arbiter. You may select the American Arbitration Association ("AAA") (1-800-778-7879) http://www.adr.org or JAMS (1-800-352-5267) http://www.jamsadr.com. The parties may also agree in writing to a local attorney, retired judge, or Arbiter in good standing with an arbitration group. The Arbiter must arbitrate under AAA or JAMS consumer rules. You may get a copy of these rules from such group. Any rules that conflict with any of our agreements with you, don't apply. If these options aren't available, and the parties can't agree on another, a court may choose the group. The parties will then obtain an Arbiter under such group's rules. Such Arbiter must enforce your agreements with us, as they are written. GA  VIEW Will the hearing be held nearby? Yes. The Arbiter will order the hearing within 30 miles of your home or where the transaction occurred. What about appeals? Appeals are limited. The Arbiter's decision will be final. A party may file the Arbiter's award with the proper court. Arbitration will solve appeals of a small-claims court judgement. A party may appeal under the FAA. If the amount in controversy exceeds $1,500.00, a party may appeal the Arbiter's finding. Such appeal will be to a 3-Arbiter panel from the same arbitration group. The appeal will be de novo, and solved by majority vote. Arbitration Fees and Awards Will we advance Arbitration Fees? Yes, but you may pay costs. We advance your "Arbitration Fees" if you ask us to. This includes filing, administrative, hearing, and Arbiter's fees. You pay your attorney fees and other expenses. Are damages and attorney fees possible? Yes, if allowed. The Arbiter may award the same damages as a court. Arbiters may award reasonable attorney fees, and expenses, if allowed by law. Will you pay Arbitration Fees if you win? No. If the Arbiter awards you funds, you don't reimburse us the Arbitration Fees. Will you ever pay Arbitration Fees? Yes/No. If the Arbiter doesn't award you funds, then you may repay the Arbitration Fees. The Arbiter will decide whether you'll pay. If you must pay Arbitration Fees, the amount won't exceed state court costs. What happens if you win? You could get more than the Arbiter awarded. If an Arbiter's award to you exceeds our last Settlement Offer, we will pay 3 amounts. We will pay the greater of the award amount or $500.00 ("bonus payment"). We will pay your attorney twice the attorney fees conferred ("attorney premium"). If the Arbiter orders, we will pay reasonable expert witness costs and other costs you incurred ("cost premium"). If we never made a Settlement Offer, we will pay the bonus payment, attorney premium, and any cost premium. The Arbiter may order the process for payment. If a law allows you more, this Clause won't prevent such award. We won't seek attorney fees and expenses. Can an award be explained? Yes. A party may request details from the Arbiter, within 14 days of the ruling. Upon such request, the Arbiter will explain the ruling in writing. Other Options If you don't want to arbitrate, can you still get a transaction? Yes. You can get our services and decide not to arbitrate. Consider these choices: 1. Informal Dispute Resolution. Contact us, and attempt to settle any Disputes. 2. Small-claims Court. Seek to solve Disputes in small-claims court, within state law limits. 3. Get a Lease Without the Clause. Write to us and ask for an Agreement without the Clause. 4. Opt-Out of Arbitration. Sign and then timely opt-out. Can you opt-out of the Clause? Yes. Within 60 days. Write us within 60 calendar days of signing your agreement to opt-out of the Clause for that agreement. List your name, address, account number and date. List that you "opt out." If you opt out, it will only apply to that agreement. 

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Did friend try set-off or repossession and sale of the Property and is being threaten for the deficit?  Also midland is know to send pre-legal letters never to follow through and sue. I know as I have gotten one and the debt are now past SOL.  

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1 hour ago, Bulldoger said:

Did friend try set-off or repossession and sale of the Property and is being threaten for the deficit?  Also midland is know to send pre-legal letters never to follow through and sue. I know as I have gotten one and the debt are now past SOL.  

Isn't that a violation of the FDCPA for a collector to threaten to sue and then not do it? I would contact an FDCPA attorney if a reasonable amount of time has passed since receiving any threatening letter and no suit has been filed. Especially if they threatened to sue when they knew or should have known that they could not do so.

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2 hours ago, alwayswinning36 said:

Isn't that a violation of the FDCPA for a collector to threaten to sue and then not do it?

No.  It is a violation to threaten to take an action they legally cannot take.  NOTHING in the FDCPA requires they actually sue simply because they disclose they can. 

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@kcdawg 304

The arbitration provision states that if you lose. the arbiter decides if you pay any fees or not.  That’s the part that is iffy.  If that depends on state law, I would find out state law.  But it seems that fees are not usually forced on a losing consumer unless the consumer filed in bad faith or caused problems during the arbitration process.  Don’t quote me on that, but that’s how it seems.

What exactly, word for word, was stated in the letter?   Just because a letter may be from a “pre-legal” department or mentions a lawsuit doesn’t necessarily mean there is a threat to sue.  But if a threat was made, that would be a claim against Midland which might cause them to walk away.

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8 hours ago, Clydesmom said:

No.  It is a violation to threaten to take an action they legally cannot take.  NOTHING in the FDCPA requires they actually sue simply because they disclose they can. 

Doesn't it depend on the circumstances?

I'll use Midland as an example since they've sued me twice.

The early legal letters say they are sending to the attorneys for review and states something like "this has not yet been reviewed by an attorney", etc.

Then, when it gets to the attorney's office, they say if you don't pay by X date we will pursue legal action.  I can't remember if this says reviewed by an attorney or not, but it has a CC to the attorney's office and they did file suit after that time in my case.  So, perfectly fine on both accounts.

I have another one that's represented by Scott & Associates.  They have sent me the warrant in debt with a letter than I can still resolve the issue.  They have not filed in court yet.  If they never file in court but only used the paperwork to threaten me, then that would be an FDCPA violation? Or, I'm pretty sure anyway.  I don't think I'll have a chance to find out - I have no doubt they'll file it in  plenty of time.

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16 minutes ago, shadow99 said:

 

Doesn't it depend on the circumstances?

I'll use Midland as an example since they've sued me twice.

The early legal letters say they are sending to the attorneys for review and states something like "this has not yet been reviewed by an attorney", etc.

Then, when it gets to the attorney's office, they say if you don't pay by X date we will pursue legal action.  I can't remember if this says reviewed by an attorney or not, but it has a CC to the attorney's office and they did file suit after that time in my case.  So, perfectly fine on both accounts.

I have another one that's represented by Scott & Associates.  They have sent me the warrant in debt with a letter than I can still resolve the issue.  They have not filed in court yet.  If they never file in court but only used the paperwork to threaten me, then that would be an FDCPA violation? Or, I'm pretty sure anyway.  I don't think I'll have a chance to find out - I have no doubt they'll file it in  plenty of time.

It does depend on the circumstances, and context is important.  Picking out a sentence or two does not always tell the whole story.  That’s why courts review an entire letter.

What exactly was stated in the letter from Scott?

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8 hours ago, Clydesmom said:

No.  It is a violation to threaten to take an action they legally cannot take.  NOTHING in the FDCPA requires they actually sue simply because they disclose they can. 

You’re absolutely correct that they can’t threaten an action that they can’t legally take.  But it’s also a violation to threaten an action they don’t intend to take.  The problem with that one is proving a debt collector’s intent.

This is why we need to see an entire letter.  Over the years, we’ve learned that context is a biggie.  😀 If anything, that’s something that was learned from “he who shall not be named”.  

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1 hour ago, BV80 said:

You’re absolutely correct that they can’t threaten an action that they can’t legally take.  But it’s also a violation to threaten an action they don’t intend to take.  The problem with that one is proving a debt collector’s intent.

This is why we need to see an entire letter.  Over the years, we’ve learned that context is a biggie.  😀 If anything, that’s something that was learned from “he who shall not be named”.  

If they haven't actually filed suit against me within 6 months of making the threat to sue, I would be filing suit against them for the FDCPA violation.

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13 minutes ago, Flyingifr said:

If they haven't actually filed suit against me within 6 months of making the threat to sue, I would be filing suit against them for the FDCPA violation.

That’s fine.  But the issue here is whether or not an actual threat to sue has been made.

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3 hours ago, BV80 said:

What exactly was stated in the letter from Scott?

They included a copy of the Warrant in Debt with a court date & time.

They said it was a "copy of lawsuit which is being filed against you"

They also included a copy of the final statement.

"This letter also contains a copy of a lawsuit which is being filed with the General District Court ..............."

"This letter does not constitute service of the lawsuit and you are not required to file an answer at this time:

"It is not too late to settle this matter.  We have authority to give you a discount for a lump sum payment or to arrange for a variety of payment plans".

I think they have to file if I don't settle.  Court date they've set is middle of Sept. so they have a little bit of time.

I haven't decided if I'm going to call them or not.  If they'd settle for like 10-20%, I might do that.  Only problem - it always seems to be a waste of time because I get some agent who doesn't seem to have authority to do anything like that and doesn't really know what arbitration means.

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29 minutes ago, shadow99 said:

They included a copy of the Warrant in Debt with a court date & time.

They said it was a "copy of lawsuit which is being filed against you"

They also included a copy of the final statement.

"This letter also contains a copy of a lawsuit which is being filed with the General District Court ..............."

"This letter does not constitute service of the lawsuit and you are not required to file an answer at this time:

"It is not too late to settle this matter.  We have authority to give you a discount for a lump sum payment or to arrange for a variety of payment plans".

I think they have to file if I don't settle.  Court date they've set is middle of Sept. so they have a little bit of time.

I haven't decided if I'm going to call them or not.  If they'd settle for like 10-20%, I might do that.  Only problem - it always seems to be a waste of time because I get some agent who doesn't seem to have authority to do anything like that and doesn't really know what arbitration means.

Ok.  If you choose not to settle, and they don’t file in the time allowed by the court, I’d file in arbitration alleging the FDCPA violation by the law firm.  If the plaintiff is a JDB, include them, as well.  

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2 hours ago, BV80 said:

Ok.  If you choose not to settle, and they don’t file in the time allowed by the court, I’d file in arbitration alleging the FDCPA violation by the law firm.  If the plaintiff is a JDB, include them, as well.  

I'm sure they'll file. Some days, they have 100 or more cases in our local court for various JDB's.

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On 7/26/2022 at 3:18 PM, Flyingifr said:

Time will tell, and 6 months is plenty of time for them to make up their mind.

I'd like your esteemed opinion of what is a reasonable amount of time, if a creditor threatens to sue "immediately"?

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On 7/28/2022 at 2:06 PM, nobk4me said:

I'd like your esteemed opinion of what is a reasonable amount of time, if a creditor threatens to sue "immediately"?

I would be pretty certain that six months was more than enough reasonable time for them to follow through with the threat of legal action in court. If they can still sue for the debt, it could be a double edged sword. The maximum for FDCPA violation(s) is $1,000.00. If the debt is more than that which they could sue for, the debtor still comes up empty handed in a counter-suit.

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On 7/25/2022 at 10:35 PM, Clydesmom said:

No.  It is a violation to threaten to take an action they legally cannot take.  NOTHING in the FDCPA requires they actually sue simply because they disclose they can. 

You clearly don't know the FDCPA. As stated by some others in this thread, if there is no intent to sue when they threaten to even serve you with papers, then they violated. They can't make the threat in an attempt to annoy, harass or abuse a debtor.

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11 hours ago, alwayswinning36 said:

You clearly don't know the FDCPA. As stated by some others in this thread, if there is no intent to sue when they threaten to even serve you with papers, then they violated. They can't make the threat in an attempt to annoy, harass or abuse a debtor.

I Know WAY more than you do about the FDCPA for sure. 

How are you going to prove their intent to the satisfaction of the courts?  It would be very easy for them to go to court and defend an FDCPA claim that they never "intended" to sue.  Hiring a law firm with a retainer would be enough to show a court "intent."  Keep in mind that one of the posters claiming this is the former owner of the now defunct DB site which often pushed these frivolous claims.  One of which resulted in precedent that is ultimately harmful for consumers in the long run.  The days of filing a vague FDCPA case against a creditor are LONG gone.  They got wise to this a long time ago (some of which is thanks to one particular banned poster on every forum but known as the Messiah of DB) and now creditors actively fight these claims and don't throw go away money at them anymore.

Not filing the suit doesn't automatically mean they never intended to sue.  Legal options change ALL the time and suits are not filed.  It doesn't change the original intent.  Tell you what:  you file one of these claims and get a court to rule in your favor and I will change my opinion.  Until then I think you are dead wrong.

 

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On 7/31/2022 at 9:26 AM, Clydesmom said:

I Know WAY more than you do about the FDCPA for sure. 

How are you going to prove their intent to the satisfaction of the courts?  It would be very easy for them to go to court and defend an FDCPA claim that they never "intended" to sue.  Hiring a law firm with a retainer would be enough to show a court "intent."  Keep in mind that one of the posters claiming this is the former owner of the now defunct DB site which often pushed these frivolous claims.  One of which resulted in precedent that is ultimately harmful for consumers in the long run.  The days of filing a vague FDCPA case against a creditor are LONG gone.  They got wise to this a long time ago (some of which is thanks to one particular banned poster on every forum but known as the Messiah of DB) and now creditors actively fight these claims and don't throw go away money at them anymore.

Not filing the suit doesn't automatically mean they never intended to sue.  Legal options change ALL the time and suits are not filed.  It doesn't change the original intent.  Tell you what:  you file one of these claims and get a court to rule in your favor and I will change my opinion.  Until then I think you are dead wrong.

 

If they made the threat, there is the intent. My brother is a lawyer, and you don't know more than he does. So there is that.

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8 hours ago, alwayswinning36 said:

If they made the threat, there is the intent. My brother is a lawyer, and you don't know more than he does. So there is that.

The same one whose only legal advice on the appellate process in Texas was "good luck" in this Thread?  Big Deal.  My father was a lawyer until the day he passed away and I assure you I know as much or more than your brother since his only advice is "good luck".  

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On 8/7/2022 at 4:50 AM, Clydesmom said:

The same one whose only legal advice on the appellate process in Texas was "good luck" in this Thread?  Big Deal.  My father was a lawyer until the day he passed away and I assure you I know as much or more than your brother since his only advice is "good luck".  

And where did that appellate process go? Settled, right? Because there was no further appeal. Brush up on Tx Civ Pro and you will see why my brother said "good luck". JP court gets appealed once and only once, to county court de novo. Decision in county court is final. No further appeal from there.

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2 hours ago, alwayswinning36 said:

And where did that appellate process go? Settled, right? Because there was no further appeal. Brush up on Tx Civ Pro and you will see why my brother said "good luck". JP court gets appealed once and only once, to county court de novo. Decision in county court is final. No further appeal from there.

According to TX statutes, an appeal can be taken from a county or district court that heard an appeal from JP court.

Sec. 51.011. APPEAL FROM COUNTY OR DISTRICT COURT AFTER CERTIORARI FROM JUSTICE COURT. If a county or district court hears a case on certiorari from a justice court, a person may take an appeal or writ of error from the judgment of the county or district court. The appeal or writ of error is subject to the rules that apply in a case appealed from a justice court.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 51.012. APPEAL OR WRIT OF ERROR TO COURT OF APPEALS. In a civil case in which the judgment or amount in controversy exceeds $250, exclusive of interest and costs, a person may take an appeal or writ of error to the court of appeals from a final judgment of the district or county court.

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14 hours ago, BV80 said:

According to TX statutes, an appeal can be taken from a county or district court that heard an appeal from JP court.

Sec. 51.011. APPEAL FROM COUNTY OR DISTRICT COURT AFTER CERTIORARI FROM JUSTICE COURT. If a county or district court hears a case on certiorari from a justice court, a person may take an appeal or writ of error from the judgment of the county or district court. The appeal or writ of error is subject to the rules that apply in a case appealed from a justice court.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 51.012. APPEAL OR WRIT OF ERROR TO COURT OF APPEALS. In a civil case in which the judgment or amount in controversy exceeds $250, exclusive of interest and costs, a person may take an appeal or writ of error to the court of appeals from a final judgment of the district or county court.

County OR district court. Doesn't say you just keep trying the same appeal until Christ comes. If you think you can appeal all 3 courts even, then do so. Waste your time and money, but odds are if you lost in JP court, didn't win in County, you're going to lose that same case elsewhere as well. We are all here cause we owe a debt, or did at one time or another.

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30 minutes ago, alwayswinning36 said:

County OR district court. Doesn't say you just keep trying the same appeal until Christ comes. If you think you can appeal all 3 courts even, then do so. Waste your time and money, but odds are if you lost in JP court, didn't win in County, you're going to lose that same case elsewhere as well. We are all here cause we owe a debt, or did at one time or another.

I did not claim one could appeal to both county and district court.  Here is the rule about appeals from JP court.

Sec. 51.001. APPEAL FROM JUSTICE COURT TO COUNTY OR DISTRICT COURT. (a) In a case tried in justice court in which the judgment or amount in controversy exceeds $250, exclusive of costs, or in which the appeal is expressly provided by law, a party to a final judgment may appeal to the county court.

(b) In a county in which the civil jurisdiction of the county court has been transferred to the district court, a party to a final judgment in a case covered by this section may appeal to the district court.

Notice that (b) says that one must file an appeal in district courts NOT county court in counties where “civil jurisdiction of the county court has been transferred to the district court.”  That is why the rules I previously cited stated “county OR district”.

The point is that, according to 51.011 and 51.012, if he loses his appeal in the court in which appeal was proper in his county, it is not final.  He can appeal from that court to the Court of Appeals.  

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